After having spent the week seriously considering contributing to the Free Speech Coalition legal challenge, I want to share my reasons for not contributing. Given how some of the frontmen of the challenge are genuine free speech advocates and the name of the Coalition is advertising itself as being pro-free speech, the motivation to contribute and support the challenge has naturally been a strong one for me.

With Peter’s recent article, in my mind the case is now clear that the Coalition is not in the right. Equally important though, and what had already been weighing on my mind, is just what the legal ramifications of the Coalition's challenge are going to be, and what they would ultimately produce in terms of impacting free speech in New Zealand. I don't think the outcome will be good.

My thinking is as follows...

As far as I can see the Coalition's legal challenge is likely to end up becoming case law that supports the worst muzzling provisions of the (mis-named) Human Rights Act. My thinking goes like this:

Goff will most likely argue that his and the Council's actions were intended to uphold the Human Rights Act rather than simply exercise their property right;

the judicial review will most likely find that the Human Rights Act trumps the Bill of Rights (which it does, but shouldn’t);

the likely result will be a ruling in Auckland Council’s/Goff’s favour, with councils and mayors everywhere having thereby obtained a legal precedent and sanction empowering officials to muzzle speech on public "property" everywhere, and to a much greater extent than they would ever exercise by merely acting as a prudent property owner in the interests of ratepayers and taxpayers.

My concern then is that rightly-motivated folk might be being used to help make this happen: to essentially bringing a ban on so-called "hate speech" by the back door -- one to be exercised by councils and mayors.

My concern is based simply on the way the law has been framed, as far as I can tell. If things do play out this way, then if the court finds in Auckland Council's favour here then the decisions of councils everywhere need no longer be based on the interests of the properties they are managing, nor of the ratepayers who fund them, but because (in their minds) they will be enforcing the muzzling provisions of the Human Rights Act.

This would then become the thin edge of the wedge leading to more and more cases of Human Rights Act violations on private property being prosecuted, and speech being shut down instead of celebrated.

That is the way the law has been framed and it is where this case seems to be headed. If it is to be lost, this is how it may begin -- with, ironically, a Free Speech Coalition acting as midwife to its birth.

So instead of the interests of free speech being advanced by the Coalitions's challenge, I fear it may instead give the Act that muzzles free speech more teeth.

Looking at the roster of names supporting the Free Speech Coalition, the name of Chris Trotter does seem to be a sort of odd one out. On the face of it, it pits him as an outlier against his "comrade(s)" at the Auckland Council -- as a face of the radical left being concerned with upholding the “rights” of the radical right. Why would he do this?

Putting on my cynical hat now: the scenario envisaged above (being the unspoken end-game of the recently empowered Left) may explain why Trotter, this most left of lefties, might put himself forward as a front-man for this legal challenge.

This is not just an idle concern. Trotter has expressed support before for these muzzling provisions of the Human Rights Act, as have his leftist comrades internationally, which on its face makes him and them no champions of free-speech. Furthermore, in responding to a letter I had published in the NZ Herald he argued explicitly against property rights being the basis upon which free speech must ultimately be implemented, expressly supporting Peter Davis's idea that “limits on the rights to 'purchase' speech are justified to protect our democracy from money politics."

Mr Trotter is no champion of free speech.

And this legal action seems to advance the opposite of that cause.

So could it be that well-intentioned defenders of free speech have joined in and are supporting Mr Trotter and comrades' “struggle” unwitting of what their support will ultimately produce? I fear so.

Just as I fear that the game plan all along was to yoke free-speech defenders to their virtue to the effect of their own demise.

52 comments:

Right, so we might lose this battle for free speech in court, so we have to give away the war already?

Sorry. Ain't buying. In fact, with respect, this argument is really silly and defeatist nonsense.

We mustn't let our loathing of the two random protagonists, here, blind us to the principle. Perhaps I'm making assumptions.

I've said on twitter, the dreadful thing about this case is though I might be happy dying in a ditch championing free speech, I'm not happy dying in a ditch for these two, but that's the nature of conflict: it's messy and always carries risk.

Mark, you wrote: "We mustn't let our loathing of the two random protagonists, here, blind us to the principle."

The principle is that property rights is the only means to consistently uphold the right to free speech. *That* is the principle that is being muddied in the legal challenge, the effect of which I fear will turn out as posited above.

Free speech is not dead yet. We must pick our battles on the basis of sound principles, lest we hang ourselves in the process.

It's not about being afraid to fight in court. It's about staying true to sound principles and being sensible enough to avoid fights that on the face of it you will lose and by losing will prevent other better principled fights from being fought.

And this battle is not able to be fought on the grounds of exercising property rights, not as far as I can tell. If you lose *that* principle as underpinning the right to exercise free speech, the war is lost. A chaos of clashing interests will be the battles then.

We'll never win the war lost in technicalities, what-ifs, and being afraid to fight 'every' battle that needs to be fought in the courts and otherwise. Your argument is better stated as we need to get rid of those two acts, by the sound of it.

Re property rights: it's bunkum, here. For this not to be a free speech issue, Goff would have to have denied every speaker use of council facilities: he doesn't, just these two (while FIANZ hold protests with Hamas and Hezbollah flags on Auckland taxpayer owned roads). It's a free speech issue.

But this has been good in clarifying some of my final thoughts. Cheers.

Yes, the bigger picture is that the offending provisions of the offending Act need to go. This *is* about property rights though. You cannot separate free speech rights from property rights without entering a quagmire and losing both. The Left know this and have exploited the fact overseas, ever since Berkeley, giving them a platform for literal "free" speech as far as they are concerned - speech that others have paid for. If we cannot learn from past mistakes, what hope have we?

The left have been exploiting this contradiction in the mixed economy for decades (i.e.,, between what can owner can decide on their private property and what an agent of the state can decide on so-called "public property") and now the alt-right want too get in on the party.But the result of that may be less free speech, not more.So not bunkum. Not bunkum at all.

You seem to be of the opinion these are two intellectual geniuses playing along the boundary of public versus private property. I think you're giving them too much credit. As far as I know, the council owns the better venues for this type of talk in Auckland, this venue happened to suit (and I wouldn't be surprised if the booking had nothing to do, directly, with Southern or Molyneux: rather it will have been their promoters or however they work).

Thus, that's 'property' out of the equation for me. It's down to Goff (and particularly for me APA's threat of violence, and FIANZ's kneejerk option to petition government for a ban). So, gentlemen, where do Goff's arbitrary actions fit into this for you both? Are you perturbed these are the only two people to get the ban, and Goff has banned no one else (while letting terror organisations that the Left support protest on Auckland streets).

Mark, Goff's action was not arbitrary, it was a judgment call. Given the cost, the can of worms it has opened, the free publicity that has been given to the couple Goff professes he is not wanting to speak, and the legal path this is now going down, by all measures it was a terrible judgment call both for the interests of free speech and his own stated aims. If I were mayor I would have let them speak. But that is not the point of contention here. The point of contention and pressing issue is whether the mayor and the council at large has the right to decide what takes place on Council property. The muddy waters starts when one begins to apply the concept of rights to an organisation that derives its property by force as the Council does. Given that the alternative is to recognize free speech rights divorced from property rights (which is to venture into the territory where the statist left get their power from), genuine free speech advocates *must* recognize the council's right to manage its property as it sees fit including the right to decide who can lease its venues, that is, if one wants to retain what is left of the foundation of *all* rights.

How to remedy a mayor or council that makes bad judgment calls is a matter for remedial avenues other than through the courts, where as things stand bad law is likely going to trump both property and free speech rights. Lose the foundational principle that property rights are the arbiter of free speech rights and you will lose free speech and in the end your property too.

If I disapprove of Goff's actions, do I have the right to withdraw my rates without penalty? [If your contention is that Goff has the right to manage assets I pay for at his whim - that's what you're saying - then my contention is it is not my responsibility to pay for said assets, because I obviously have no ownership stake.]

I never said he had the right. What I said was that the waters on rights are muddied in this context and that we need to *recognize* the Council's right de facto, even though it is not a right de jure, because the alternative is much worse and would open the gateway to losing property rights and therewith free speech rights altogether.

The debate should shift to doing away with the offending Act and to how to limit the powers of a mayor acting against the wishes of ratepayers *at large* in cases where voting will not achieve such a curb. Of course ideally the latter debate should go more fundamental still and challenge the very right of the council to force people to pay rates and use its "services".

Final post: we have ten people coming over for a rock concert in the cinema room :)

People also matter. I think Stephen Franks is one of the finest legal minds in the country. If he believes it important to take a case on Goff's powers here - does he have the right to administer public assets according to his private political prejudices - then that is also good enough for me.

I'm sick of seeing our iron clad rights disappearing through our Orwellian mix of tax, securities and now anti-money laundering laws, there has to be a point where we take authority to power to get some principles of a free society back from them by taking power of their hands. This is a worthy case (forget the possibly two unworthy people it is for, they are irrelevant).

Bugger, above should read ... where we take authority to task to get some principles of a free society back from them by taking power off them and making them responsible to their ratepayers, in this instance...

Correction: de jure and defacto above were employed the wrong way around.

Mark, if Stephen Franks can correct me, I am all ears. I do not run with a group just because its running or because I like and respect whose leading it. I go with my conscience, and to do that I need to understand the issue. Everything I have posted is how I presently understand the issue.

To add to the above, the fight that should be fought to get Molyneux and Southern to be heard by those who want them to be heard is to either lobby the council to change their decision, to vote against the council and/or mayor in the next elections so that their replacement will allow those speakers to speak, or help secure another venue for them. All of these approaches uphold property rights and with them the right to exercise free speech without introducing the dangerous precedent of making property rights subservient to claims that a mouth-piece must be supplied on the grounds of free speech. As Peter's article noted, that is how things went pear-shaped at Berkeley.

Well, if you collapse the distinction between private property and so-called "public property," then pretty soon you will have government making sure NO-ONE can decide who speaks on their own property.THAT is what I find unacceptable.

Let these idiots hire their own private hall.Don't let them tell you that the council failing to provide one is censorship. It is nothing of the kind, and if you misunderstand that, then you open the door to the govt controlling speech, not freeing it.

I understand you and Terry's point of view. It tends to be a far sighted view of how it will work out on a legal basis.That view is lost on most people thou.Its the principle of free speech that matters to me.

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves & abhors, is sinful and tyrannical." All opinions will have their disbelievers and those who find them abhorrent,therefore all opinions should be banned from being expressed on rate payer owned council venues.

I agree that property rights should be recognized, that was my point.Whenever a rate payer owned venue is used by a group that is expressing their opinions, then there is going to be rate payers that are going to be annoyed that they are being compelled to fund a venue where people are expressing views contrary and perhaps views they find abhorrent.As Thomas Jefferson said, that is sinful and tyrannical. If the Mayor gets to decide which group can use rate payer owned venues to express their views, and which group can't then that is favoured propaganda. I think you are right that if the Council defeats the freedom coalition in court, that will set a precedent that allows councils to stifle freedom of speech.

The property in question does not belong to Goff or Council members. They are stretching the situation to make a political decision on the basis of ownership. . There is no time to lobby council, and b next election nobody will remember any of this preventing a perefectly rational people with a good evidence based campaign. The reprehensible and repugnant Lauren Siuthern just came back from South Africa attempting to notify the white farmers psotion. In the end the ugly and repugnant State of Russie is taking them. Ian Lees- Galloway did not answer letters about the question of New Zealand help. Something about diversity first..

Richard, by winning this challenge what will be won? Answer: a legal precedent that property rights do *not* underpin free-speech rights, at least on public property. All that will be achieved from that is a weakening of the foundation of right that upholds free speech on *private* property. Long term that win is really a loss, and the hard Left knows it. And what is lost by losing? Answer: the HRA which presently is benign getting some sharp teeth on both public *and* private property. So it's lose-lose. There is a third option: don't fight this one.

I don't agree with you, Terry, that it cannot be fought on the basis of property rights. The issue of property rights cannot be avoided in this case. The Mayor does not have the right to make value judgement precisely *because* he does not own the property in question. I think that very nicely elevates property rights, along with highlighting the inherent conflict in public ownership.

Richard, when I wrote "this battle is not able to be fought on the grounds of exercising property rights, not as far as I can tell" I meant not able to be won on the basis of property rights, my reasoning being that the muzzling provisions of the HRA trumps the Bill of Rights and also what property rights there is here in NZ. That is how the law has been framed, as far as I can tell. I welcome a legal expert to correct me. If I am right in my thinking then whatever victory the FSC might achieve will almost certainly be a pyrrhic one. The offending Act needs repealing to win this one, but that is not the fight the FSC is planning to fight, is it.

There is a difference between not being able to win on the basis of property rights, and not able to be fought on the basis of property rights. If winning the court case is the sole goal, regardless of the morality of it, then there is no point in going ahead. If it is about the morality of it, then even with a lose there is a win - a win in illuminating the existing corruption and spreading the moral case. This is just one battle in a war, a war in which the outcome in the long term will not hinge on this case.

The morality is in upholding the right to exercise free speech based on property rights, not in inviting free speech and property rights to be take away by giving currently benign legislation the teeth it needs to be effective.

And a point regarding the property rights of ratepayers. Ratepayers are akin to shareholders are they not? Shareholders with an unlimited liability who have been forced to be shareholders. A shareholder cannot demand the right to be served as a customer against the policies or management decisions of the company concerned. All a shareholder can do is vote for change at the next AGM or make suggestions to management, and even that assumes they hold voting shares. If the Bruce Mason centre were a company and had shares in it, you could not demand that you have the right to book the venue on account of your shareholding. That decision rests with the company as a whole, meaning with the board and ultimately with the shareholders at large. So I am not sure that the argument based on property rights is even in the FSC's favour, meaning morally you are not in the right on that count either.

Wrong, Terry. As a shareholder/customer of a company I can boycott them and shop somewhere else, for starters. I have no such volition against 'my' council. Are you saying a government has the right to limit free speech, as Goff has done, on 'government property'; for example, Parliament or the debating chamber.

Whether it gives extra teeth to current legislation or not remains to be seen, but even if it does, I do not see that as a good reason not to go ahead with the court case, if the case is to be fought on the basis of property rights. It's about the principle.

In regards to shareholders and a private company, I don't think you can compare the two. A private company acts towards profitability on behalf of shareholders who have voluntarily parted with their money in support of those running the company. This is not the case with ratepayers and the mayor. You can't compare ratepayers with shareholders. Goff isn't thinking that Stefan and Southern will be bad for business, and thus hurt his shareholders. It's a case of him lording it over his subjects by deeming certain ideas out of bounds for them.

It's about principle for you. It's about a trap for them. Hence the closing remark of my article; by defending your principle you will trigger their trap, a trap that is designed to prevent you from operating on principle (i.e., from speaking freely, as we still can in this country, thankfully). The greater principle which should be fought for is removing the trap.

Re companies, many do not operate for profit, and many survive (like the council) by exploiting coercive laws, so your distinction does not hold. The point I am making is that there is a legal entity in each case which has its own property rights in law, and then there are the stakeholders who have their property right in the legal entity. So I am still not convinced you are in the right on where the property right must be recognized *in law* (morally is another issue).

That it is a trap is a theory, so it cannot be taken as fact. Just a possibility. You might have missed where I said that it doesn't matter if it is a trap, and if they win. I think the principled stand will have value in raising consciousness about the issues, regardless of whether or not the outcome is a win. That's assuming that the majority of New Zealanders can think clearly enough to see the arguments.

Mark, no, I am most certainly not saying that. One cannot speak of rights proper when it comes to government property. So one is left to revert to the next best thing, which is far from ideal, and that is to apply property rights to what is publicly owned even though said property has been plundered. At least that way the baby is not thrown out with the bathwater, the baby being the principle that rights can only be implemented based on property rights. Throw that principle out and you throw out all rights along with it.

'I am most certainly not saying that. One cannot speak of rights proper when it comes to government property. So one is left to revert to the next best thing, which is far from ideal, and that is to apply property rights to what is publicly owned even though said property has been plundered. '

To (by changing a single word):

I am most certainly not saying that. One cannot speak of rights proper when it comes to COUNCIL property. So one is left to revert to the next best thing, which is far from ideal, and that is to apply property rights to what is publicly owned even though said property has been plundered.'

I agree with Mark Hubbard's very last comment, and I agree it's a simple as that. When the state gets involved in activity they shouldn't (owning speaking venues) it complicates things, and there's no perfect answer. In that situation you simply have to make a judgement call on what is the most important value to defend or attack in the context of the times. This is not abandoning principle, but choosing the most important principle that can be practically applied in that context. It's very clear to me we have more to lose by letting Goff's cowardice and capitulation to the politically correct narrative go unanswered. It's now about what Molyneux/Southern are allowed to do, but about what Goff is not allowed to do.

This scenario highlights the elementary mistake made by the organisers of this speaking tour - by having it on privately owned property, this whole mess could have been avoided. There will now be a lot of privately raised money thrown down a black hole, along with lots of Auckland ratepayer money. It would perhaps have been better to have first established in court the ironclad right to have held these meetings with Molyneaux and Southern on privately owned property.

It did seen odd to have Trotter, who has defended Communist totalitarian states such as Cuba in the past, as a figurehead for free speech.

I think the debate here has become clouded by liberterian ideology at the expense of common sense. I think the council should have reigned in Goff but, being gutless, didn't. There was no process here, just decree. The fact is that the council owns the venue (whether you like the idea or not) but that ownership is effectively a trust arrangement with ownership being for the benefit of the rate payers who fund it via rates with the expectation it will be used to generate revenue to offset costs. The council does not have a veto right that a private owner would because of harmless things like perceptions of bad taste, religious conviction, hurt feelings and so on.

Therefore, apart from the threat of violence by the Peace Action deluded, (which the police should deal with if it becomes actual violence) there is no reason why this evening cannot proceed as there's no risk beyond a bit of criminal damage or assault which can be avoided or addressed via the Crimes Act unless the cops twiddle their thumbs.

Given the above Goff's decision is clearly a political one related to him being a hard leftie - he just doesn't want to have these two pose questions that may challenge the left's ideology because he's frightened of consequences from other lefties further into the trough than he is and, more worryingly, the Islamic Council who hate attention being given to Islam's claims, its writings and the delightful Sharia Law.

As we saw on the weekend most free speech advocates are busy making a living and can't raise the numbers to look threatening so a legal challenge is sensible. We can always debate which fight to pick but I think this one is worth a look because its such a personal attack by one politician acting in a most partisan and arrogant manner to bar people from enjoying an evening in a venue they may well have paid for. Personally I'd love to see Goff get trashed - it would slow down these petty bureaucrats whom we simply would be better off without.

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